Commentary

Barry Bonds trial starts to take shape

Two months from the scheduled start, we identify four critical unresolved  issues

Updated: January 14, 2011, 3:28 PM ET
By Lester Munson | ESPN.com

Contempt of court. Alternative inferences. Jury nullification. Maybe those aren't the kind of subjects that get you up in the morning, but they definitely float the boat in that special view from our Courtside Seat. We're only two months away from the first big sports trial of the year. We can hardly wait! Today, we start with …

The Home Run King (with an asterisk)

As federal prosecutors and lawyers for Barry Bonds scramble to finish their preparations for the perjury trial scheduled to begin on March 21 in San Francisco, critical issues that could determine the outcome are coming into focus. Here is a look at four questions involving recently emerging developments and how they might affect the final decision about whether Bonds lied to a grand jury investigating the BALCO case in 2003.

Can the government put Greg Anderson on display before the jury?

Anderson's steadfast refusal to testify against Bonds has put the prosecutors in a bind. Without his testimony, they cannot present powerful evidence of Bonds' use of steroids and human growth hormone (HGH). Although there is little doubt about Anderson's sincerity in his refusal to testify (he has served time in jail because of it), the prosecutors have indicated in pre-trial court papers that they will drag him before U.S. District Judge Susan Ilston as the trial begins. They will again demand his testimony, and, when he again refuses to cooperate, they will insist that he be thrown in jail again for contempt of court.

Barry Bonds
AP Photo/David J. PhillipOne of the things to watch at trial: How much will the jury really care about punishing Barry Bonds?

Their idea, apparently, is that when they show the jury that Anderson refuses to testify, the jurors will conclude that his silence is evidence of Bonds' guilt. It isn't a bad theory. Anderson's testimony presumably would include his doping calendars from 2001 to 2003 containing Bonds' name and initials; his records of purchases and deliveries of steroids and HGH to Bonds; and his help in processing drug tests for Bonds. The prosecutors will argue that Anderson's refusal to answer questions about any of this evidence is an admission that Bonds, with Anderson's considerable help, was using steroids and tried to cover it up with lies to the grand jury.

The prosecutors will call their display of Anderson's refusal an "admission by silence." Bonds' lawyers will call it prosecutorial misconduct. They've asked Ilston to bar (their word is "preclude") the government from any attempt to put Anderson on display in front of the jury.

Contrary to the government's seemingly irrefutable suggestion that Anderson's silence is incriminating, the Bonds legal team suggests that there are other explanations for Anderson's silence. They call them "alternative inferences." His testimony, they claim, might actually "assist Bonds." They don't explain how doping calendars and positive drugs tests could "assist" their client, but they do suggest that Anderson's "hatred of the government at this point in his mind outweighs whatever good he could do for his former client."

If that idea doesn't work for you, the Bonds lawyers have another one. They say that Anderson's refusal to testify is now because he "feels abused by the government's treatment of him and his family." The abuse includes, they say, threats to "imprison his wife and mother-in-law" and "sending an undercover agent to surreptitiously record workout sessions with [his] wife, who is also a personal trainer."

Anderson's experience with the U.S. Government has left him, the lawyers argue, in a position in which he "distrust(s) the prosecution's willingness to accept even truthful testimony." Anderson believes, they say, that if he told a truth the prosecutors did not like, they'd charge him with perjury.

Although the "alternative inferences" might not seem plausible, the Bonds side does have powerful legal authority from the Federal Rules of Evidence and from precedents in old cases. In a decision made in 1999, for example, the Court of Appeals for the 10th Circuit ruled that it would be "misconduct" for prosecutors to "continue to question a witness once (his) consistent refusal to testify became apparent."

It's easy to see why the government wants to display Anderson to the jury. But it's also easy to see that Judge Ilston is likely to stop the maneuver in a pre-trial ruling, even before Anderson reaches the courthouse steps.

Can the government use positive drug tests from MLB's 2003 pilot testing program?

Before Jeff Novitzky, the leader of the government's investigation into Bay Area Laboratory Co-operative (BALCO) and Bonds, raided the labs that processed MLB's drug tests for 2003 and grabbed all the results, he obtained several search warrants. One of the warrants included the names of 10 ballplayers who were part of the BALCO operation.

Grege Anderson
Getty ImagesThe government is trying one more time to get Greg Anderson to testify.

Although court rulings criticized the raids and ordered the return of the test results, it appears that the prosecutors in the Bonds case might be able to use a positive test result on Bonds as evidence in the perjury trial. It isn't clear in the hundreds of pages of opinions and orders in the massive litigation that resulted from the raids, but it is clear that the courts did not criticize the taking of the 10 tests on players, including Bonds, whose names showed up in BALCO documents.

Anderson's refusal to testify means that the prosecutors cannot use the tests conducted at BALCO, but the positive test in MLB's 2003 pilot program would be powerful evidence that Bonds was using drugs and lied about it to the grand jury. Even though the 2003 testing was supposed to be anonymous and free of any stigma or punishment, Novitzky's timely raid gave the prosecutors the closest thing they have to a smoking gun.

Two of the 11 counts in the perjury indictment focus on 2003. Although the prosecutor's questions to Bonds were imprecise, it is clear in Bonds' answers that he denies using anything illegal in 2003. In response to one of the prosecutor's clumsy questions, bonds said that Anderson gave him "some cream, some lotion-type stuff, and, like gave me some flax seed oil." Bonds explained that the substance was supposed to help him recover from the death of his father, Bobby, after a long bout with cancer. "I was fatigued, tired, just needed recover, you know," Bonds told the grand jury.

In another answer that is part of the perjury charge, Bonds said that Anderson gave him the cream "once a home stand or something" and that it was "because I was battling with the problems with my father and the -- just the lack of sleep, lack of everything."

The prosecutors will show that the cream was a BALCO-produced steroid that was supposed to be undetectable and had nothing to do with grief, bereavement or fatigue.

In a situation in which pre-trial rulings from Ilston and from the U.S. Court of Appeals for the 9th Circuit have decimated much of the prosecutors' evidence so far, the positive test from 2003 will be crucial. Bonds' lawyers will fight it, but it's probable that the 2003 test will be shown to the jury.

Is Steve Hoskins an honest man?

Hoskins and Bonds were childhood chums, and in the early '90s Hoskins began taking care of business for Bonds. He did errands, he scheduled appearances, he managed finances and he did whatever Bonds wanted him to do. He was best man in one of Bonds' weddings, and he even delivered regular, cash payments to two of Bonds' girlfriends.

His tasks also included the establishment of a memorabilia business called Kent Collectibles that sold Bonds-autographed baseballs, jerseys, caps and much more.

During the 2003 season, Bonds somehow decided that Hoskins was cheating him in the memorabilia operation. Imagine that -- a dispute over money in the cash-based sports memorabilia business in which just about everything is of dubious provenance.

When Bonds and attorney Laura Enos confronted Hoskins about supposed discrepancies at Kent Collectibles, Hoskins tried to work things out. He suggested, according to Enos, that if Bonds persisted in his allegations, Hoskins would reveal Bonds' cash income, his paramours and his steroid use.

The dispute raged out of control, ending a lifetime friendship and resulting in a report on Hoskins to the FBI. After a "full-blown investigation," according to Hoskins' lawyer, Michael Cardoza, the FBI concluded that Hoskins had not forged autographs and had kept detailed and accurate records of everything.

Barry Bonds
Christian Petersen/Getty ImagesBonds could face potentially damaging testimony from his childhood friend Steve Hoskins.

The outcome of the investigation was no surprise to anyone familiar with the sports memorabilia business. Its standard of care is so low that it is almost impossible to conclude that anything is dishonest.

As he had promised, Hoskins also delivered to the FBI powerful evidence of Bonds' steroid use -- evidence that the prosecutors are ready to use in the perjury trial. In addition, one of the government's witnesses is expected to use testimony from Hoskins and Kimberly Bell (one of Bonds' ex-girlfriends) as a basis for an expert opinion that the changes in Bonds' body (size, muscle mass, acne, testicle shrinkage) are the result of PEDs.

The Bonds legal team, showing some concern about the Hoskins evidence, is demanding that the prosecutors turn over to them all of the records of the FBI inquiry into Hoskins and Kent Collectibles. The lawyers say that the decision not to prosecute Hoskins was a "benefit" to Hoskins and, in return for the "benefit," Hoskins fabricated descriptions of Bonds' steroid use.

Any inquiry into the Bonds-Hoskins friendship would quickly show that Hoskins was in a position to know what he claims to know. "Steve was his best friend," Cardoza said. "Steve had a relationship with him that nobody else did." It's hard to see how becoming ensnared in the Bonds perjury prosecution was a "benefit" to Hoskins.

But the Bonds legal team is probably entitled to the records of the memorabilia investigation. Combing through them, they might come up with something they can use in their cross-examination of Hoskins. Their attack on his veracity will be vicious. Hoskins, however, offers a plausible story of steroid use, and the prosecutors will claim that his testimony is not a betrayal of a friend but instead a painful act of personal integrity. It looks like Hoskins comes out ahead of this one.

Will a San Francisco jury care about Bonds' use of steroids?

It's something that will be barely noticeable. It will be so subtle, so nuanced and so quiet that you could be sitting in the courtroom all day and miss it. It's a lawyer's technique known as jury nullification.

It works like this: The facts indicate guilt and the law seems to require a finding of guilt, but the jury will ignore the facts and ignore the law, and, because of unspoken but compelling factors, it will make a finding of not guilty.

It could become a factor in the Bonds trial. The evidence goes back several years. The jurors will be hearing "2003" and "2004" several times a day. The jurors will know that the government has been working on the case, using taxpayer dollars, for at least seven years. Despite the years of effort, they will see nagging gaps in the government's case. They know that he is no longer playing baseball. And they will know that Bonds has already paid a terrible price for his use of steroids. Many fans don't consider him to be the greatest slugger of all time, despite his statistics. To many, he is a serial cheater who has tarnished the game.

At some point in the jury's deliberations, if the nullification works, a juror will say something such as, "Why are we wasting our time on this? The damage is done. He's paid the price. Let's all get home for dinner."

Can a nullification strategy work? The lawyers on the Bonds legal team have the skill and the dexterity to make it work. Only the jury can decide.

Games we can't watch

With an NFL lockout possibly looming in early March, the players and the owners have been battling in closed hearings on the validity of television contracts that require the networks to pay the owners for games that will not be played during any work stoppage.

With Penn law professor Stephen Burbank presiding as a court-ordered "special master," the lawyers for the players and the owners presented their closing arguments on Thursday in a mock courtroom that is part of the New York office of Dewey LeBoeuf, one of the law firms representing the players.

[+] EnlargeDeMaurice Smith
Doug Benc/Getty ImagesDeMaurice Smith and the NFLPA claim the league sacrificed revenue from the networks to protect itself against a lockout.

Since the sessions began on Jan. 3, they've already presented documents; questioned league and network officials; and offered expert testimony on economic issues. Burbank is expected to make a decision on the highly important dispute by Feb. 1.

The players and their lawyers argue that the owners gave away income in return for the lockout clauses in network contracts that require the no-games payments. They call the network contracts "lockout insurance" or "lockout loans." The income that was given away, the union argues, was income that should have been collected in the 2009 and 2010 seasons and made a part of the league's salary payments to players.

The lockout clauses were inserted in the network contracts as part of the NFL's lengthy and detailed preparation for the lockout. The clauses are unprecedented in the sports industry. It marks the first time that any league has ever succeeded in persuading networks that they should pay for games that will not be played.

Burbank closed the hearing at the request of NFL lawyers, who were worried about disclosure of top-secret information about league contracts and network negotiating strategies.

Although Burbank's ruling will be a major turning point in the events leading to the potential lockout, the losing side will immediately appeal his decision to U.S. District Judge David Doty in Minneapolis. Then, there will be an appeal to the U.S. Court of Appeals for the 8th Circuit.

By the time a decision is made in this critical aspect of the lockout scenario, the lockout may already be underway.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

MORE COMMENTARY >>